|Tuesday, 10 July 2007||
The EU Constitution Mark 2, whose main elements were agreed at the German-chaired EU summit at the end of June, will take the form of amendments to the two existing EU/EC Treaties, the “Treaty on European Union”(TEU) and the “Treaty Establishing the European Community”(TEC). This will be a change from the proposal to repeal the existing European treaties entirely and substitute for them the “Treaty Establishing a Constitution for Europe” which was signed in October 2004 but which was rejected by French and Dutch voters in summer 2005.
The new treaty will be called something different. The word “Constitution” will not occur in either its text or its title. The provisions to give a legal base to the symbols of EU statehood – the flag, anthem, motto and annual national day – will be dropped, while the reality of the EU statehood which they symbolise will be brought into being – and the flag, anthem etc. will continue in use anyway as they have existed for years without any legal basis. Some other presentational changes will be made, but the new treaty will be legally as much a constitution as the previous one, for it will CONSTITUTE or establish a legally new European Union in the constitutional form of a State for the first time and will make us all real citizens of that State.
This would be the most important step to affect the Irish State since its establishment in 1921. It would represent the final abandonment by Fianna Fail and the principal 26- County political parties of all pretence to Republicanism or concern for democracy and national independence, on which their claim to historical legitimacy has rested.
As Taoiseach Bertie Ahern, German Chancellor Angela Merkel and other EU leaders have admitted frankly, the revised treaty will contain 90% or more of the Constitution which French and Dutch voters rejected two years ago. But by not calling it a constitution the EU elites hope that they will be able to avoid referendums on it and will be able to push it through their national parliaments without giving their citizens a say.
The treaty embodying the revised EU Constitution, although it will not be called that in order to facilitate its ratification without referendums in the EU Member States, would do six important things:-
Firstly, the new treaty would add to the powers of the Brussels institutions, which already make the majority of our laws, in over 40 new policy areas – including energy, transport, tourism, public services, space, sport, civil and criminal law, civil protection, public health, the EU budget – while correspondingly reducing the powers of national States, national parliaments and citizens.
Secondly, in making those laws the new treaty would increase the voting weight of the bigger EU States and reduce that of smaller States like Ireland.
Thirdly, It would deprive Member States of the right to have a representative at all times on the Brussels Commission, the body which has the monopoly of proposing European laws. Big States as well as small ones would lose a permanent Commissioner, but the economic and political weight of the former makes them inherently better able to defend their interests without such representation.
Fourthly, it would contain a mechanism to enable majority voting for European law-making to be extended to new policy areas by agreement among governments, without need of new treaties or treaty ratification.
Fifthly, it would make the EU Charter of Fundamental Rights legally binding on the EU Member States and their citizens. This would give the 27 judges of the European Court of Justice in Luxembourg – which has one Irish representative – the final decision on the wide range of human rights matters covered by the Charter, as against national Constitutions and Supreme Courts, or the Court of Human Rights in Strasbourg. This would greatly extend the power of the EU Court, which one of its own judges once characterised as “a court with a mission” – that mission being to extend the powers of the EU as widely as possible by means of the case law of a court that is notorious for “competency creep”. The Charter would apply in all areas of EU decision-making,which now makes most of our laws. It could lead to uniform standards being imposed across the EU as regards areas of human rights where there are significant national differences – for example trial by jury, rules of evidence, censorship law, the criminalisation of hard drugs and prostitution, rights attaching to State churches, conscientious objection to military service, euthanasia, succession rights to property, family law and the rights of the child and the elderly etc. It could lead to jurisdictional disputes between the EU Court of Justice in Luxembourg and the Court of Human Rights in Strasbourg, for the former court would have supremacy in any case of conflict between the two. Moroever the Constitution will provide that the exercise of the rights and freedoms recogised by the Charter may be limited “to meet objectives of general interest recognised by the Union”. This means that the rights set out in the Charter of Fundamental Rights would not be so fundamental after all. This is more about EU power than rights. Human rights standards in the EU Member States are not so defective that they require a supranational EU Court to lay down a superior norm or to impose a common standard across the EU States and their Constitutions.
Sixthly: Politically and constitutionally however, the most important thing the new treaty would do would be to give the new European Union which it would legally establish the constitutional form of a supranational State for the first time, making this new Union separate from and superior to its 27 Member States.
This would make the EU just like the United States of America in that the US is separate from, and constitutionally superior to, California and New York. Similarly, Germany is separate from and superior to Bavaria and Saxony.
We would all be made real citizens of this new EU State rather than notional or honorary European “citizens” as at present; for one can only be a citizen of a State.
It is this which would give the new treaty the character of a Constitution or basic law for the legally new European Union which it would establish. This change would be accomplished by three essential legal steps:-
THE THREE LEGAL STEPS TO EU STATEHOOD
The first legal step would be for the treaty to give the new European Union its own legal personality and distinct corporate existence for the first time, something that all States possess. This would enable the newly constituted EU to sign treaties with other States, have its own President, Foreign Minister – however called – diplomatic corps and Public Prosecutor, and take to itself all the powers and institutions of the existing European Community, which already has legal personality and which now makes most of our laws. The symbols of European statehood – flag, anthem and national day – will be excised from the new treaty, for as Taoiseach Bertie Ahern explained vividly after the Brussels summit, as these annoy a lot of people. But the State reality they symbolize would nonetheless come into being.
In this connection it is important to realise that what we call the European Union at present does not have legal personality or corporate existence in its own right, and what we term EU “citizenship” does not have supranational legal content. Properly speaking, therefore, there is no such thing as “EU”(European Union) law, only “EC(European Community law. That would change with the proposed new treaty. What we call the European Union now – a name which derives from the 1992 Maastricht Treaty on European Union – is merely a general descriptive term for the various areas of cooperation between its 27 Member States – the area of supranational European law deriving from our continuing membership of the European Community, and the “intergovernmental” areas of foreign, justice and home affairs, where Member States still interact on the basis of reta
The second legal step in giving contitutional statehood to the new Union would be to abolish this distinction between the supranational “community” and the “intergovernmental” areas of the two existing European treaties, the Treaty on European Union(TEU) and the Treaty Establishing the European Community(TEC). Thus all spheres of public policy would come within the scope of supranational EU law-making, either actually or potentially, as in any unified State. The newly established Union would then possess all the key features of a fully developed State except the power to impose taxes and to take its constituent Member States to war against their will. The Euro-integrationists hope that it will acquire these remaining features in time.
The third legal step would be to make us all real citizens of this new EU State entity, with the normal citizens’ duties of obedience to its laws and institutions and loyalty to its authority, over and above our obligations to our national constitutions and laws, with all the implications of that. Those pushing the EU State-building project hope that voters will not notice the radical character of the constitutional change proposed, for after all does not the EU exist already and are we not already EU “citizens”? These familiar terms would continue to be used as if nothing had changed, although their legal substance would be transformed fundamentally.
That is why the 1992 Maastricht Treaty, which got us to use the terms “European Union” and EU “citizenship” for the first time, was titled a Treaty ON European Union, not OF Union. The proposed new constitutional treaty would effectively be the Treaty OF Union, although it will be called something else. It would in effect be the capstone of the EU State edifice, which it is hoped to set in place nearly sixty years after the 1950 Schuman Declaration, which is commemorated annually on Europe Day, 9 May, proclaimed the European Coal and Steel Community to be the “first step in the federation of Europe”.
It is no small thing to attempt to turn the citizens of the 27 Member States of the EU into real and not just notional citizens of a supranational “United States of Europe” which is separate from and superior to their own National States and Constitutions. It can only be done by deception and bullying – and above all by avoiding referendums that would enable people to decide such a fundamental constitutional change themselves. The strategic deception lies in the elaborate charade of the 1992 Maastricht Treaty on European Union and the new Treaty of European Union, which the proposed revised Constitutional Treaty in effect would be, although it is intended to give it some such spin-doctor’s title as “Reform Treaty” to make it easier for the EU elites to get it ratified.
By such sleight of hand are we to be made real citizens of a real European State that is superior to our own national States. Those pushing the new treaty hope that we will thereby have real citizens’ obligations of obedience, solidarity and loyalty to the new European Union imposed upon us without our knowing or realising that this is happening. If they should succeed, one can predict confidently that the popular reaction will be all the more explosive,when people realise in due time what has been done.
People may welcome or decry these proposed constitutional changes for the EU, but clearly they call to be widely analysed and discussed before we vote on them in Ireland.
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